Pre-Cognizance under Section 223 of BNSS

Source: Patna High Court 

Why in News? 

Justice Arun Kumar Jha of the Patna High Court in the case of Pushpraj Bajaj v. Union of India and Ors. (2025) set aside the cognizance order dated 08.01.2025 passed by the Special Judge (PMLA), Patna, for failure to provide the accused an opportunity of pre-cognizance hearing as mandated under the first proviso to Section 223(1) of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS).

What was the Background of Pushpraj Bajaj v. Union of India and Ors. (2025) Case? 

• The Enforcement Directorate registered ECIR dated 14.03.2024 based on FIRs against Sanjeev Hans and others for amassing assets while in public service. 
• The petitioner Pushpraj Bajaj was not named in the original FIRs or ECIR but was arrested on 22.10.2024. 
• The ED filed a Prosecution Complaint on 16.12.2024 and Supplementary Complaints on 08.01.2025 and 09.01.2025 under PMLA, naming the petitioner as accused no.5. 
• On 08.01.2025, the Special Court took cognizance for offences under Sections 3 & 4 of PMLA without providing any opportunity of hearing to the accused. 
• The petitioner challenged the cognizance order for violating the mandatory pre-cognizance hearing requirement under Section 223(1) of BNSS.

What were the Court's Observations?

• The Court held that the first proviso to Section 223 of BNSS mandates that "no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard," incorporating principles of natural justice. 
• Since the complaint was filed after 01.07.2024 (when BNSS came into force) and cognizance was taken on 08.01.2025, Section 223 of BNSS was fully applicable. 
• The Court rejected ED's argument that the Supreme Court's ratio in Kushal Kumar Agrawal v. Directorate of Enforcement (2025) would apply only prospectively, stating that judicial interpretation clarifies the law from day one, not from the date of interpretation. 
• The Court rejected ED's contention that non-compliance was merely an irregularity under Section 506(e) of BNSS, holding that denial of pre-cognizance hearing amounts to acting against statutory mandate. 
• The Court held that no prejudice needs to be demonstrated when a statute provides a valuable right, citing the principle: "If a statute provides for a thing to be done in a particular manner, it must be done in that manner or not at all." 
• The Court rejected arguments that opportunities during investigation or at future stages (framing of charges) could cure the defect, stating: "If the initial proceeding stood vitiated, subsequent curative measures could not put a cloak of legality on subsequent proceedings." 
• The Court set aside the cognizance order dated 08.01.2025 and remanded the matter to the Special Judge for fresh decision after hearing the petitioner in terms of Section 223(1) of BNSS. 

What is Section 223 of BNSS? 

• Section 223 (1) provides for the following: 
  • Examination of Complainant & Witnesses 
    • A Magistrate taking cognizance of an offence on a complaint must examine the complainant and witnesses under oath. 
    • This examination is recorded in writing and signed by all parties, including the Magistrate. 
  • Opportunity for the Accused 
    • Cognizance cannot be taken without giving the accused an opportunity to be heard. 
  • Exceptions to Examination Requirement 
    • The Magistrate need not examine the complainant and witnesses if: 
      • The complaint is made by a public servant in official capacity or by a court. 
      • The case is transferred to another Magistrate under Section 212. 
  • No Re-examination on Case Transfer 
    • If a case is transferred after initial examination, the new Magistrate need not re-examine the complainant and witnesses. 
• Section 223 (2) further provides for the following: 
  • Cognizance of a complaint against a public servant for acts done in official capacity requires: 
    • The public servant to be given an opportunity to explain the situation. 
    • A factual report from a superior officer regarding the incident.

What is the Difference Between Section 200 of CrPC and Section 223 of BNSS?